Judge Maraga's other choice

Chief Justice Maraga (Emeritus) gave an interview on the 18th June, 2025, where he announced that he intended to stand in the net presidential election. The interview covered a broad range of current political questions, and the announcement was treated with little enthusiasm by the interviewer, Mr. Joe Ageyo. It is a sign of the seriousness, or lack thereof, that Judge Maraga's presidential ambitions is treated.

A very, very small straw poll among my online horde (which is not dispositive of anything) supports the idea that Judge Maraga is in the wrong campaign. He beat out a relatively strong field to be appointed as Kenya's second Chief Justice under the 2010 Constitution. As head of the Judiciary, he tried his best to advance the administration of justice by expanding the real estate development of the Judiciary and keeping out of political contests. That is until his Supreme Court nullified the 2017 presidential election which he followed up by calling for the dissolution of Parliament for failing to meet the Tw-thirds Gender Rule. Anyway, I digress.

Judge Maraga was a good judge and a good Chief Justice, never mind what the likes of Senior Counsel Ahmednasir Abdullahi say about him. During the height of the Covid-19 Pandemic, he ensured that the courts continued to function efficiently and even after Uhuru Kenyatta and his henchmen "revisited" the Judiciary by slashing the Judiciary budget so viciously it is a wonder it continued to function in the dying days of Uhuru's presidency. Even his leadership of the Judicial Service Commission did not elicit the kind of carping that accompanies those sorts of high offices. Nevertheless, I am slowly succumbing to the argument that despite his many qualities and qualifications, he is not well-suited to be elected Kenya's sixth president.

Lawyers, especially Kenyan lawyers who have had long legal careers like Judge Maraga, generally, make for bad politicians. A perusal of the parliamentary Hansard on the performance of lawyers in both the National Assembly and Senate reveal that they are champion debaters, but they are too easily enamoured of legalism to make proper political choices that will benefit not just their constituents but the Republic as well. If you look at the decision by the lawyers sitting in the National Assembly to defy the Supreme Court regarding the Constituencies Development Fund, you will see what I am talking about. These people, in my estimation, should not be trusted to hold elected office, certainly not the presidency.

In Judge Maraga's case, if he truly wishes to serve, there is one place where his particular strength of character will be of immense value: the State Law Office. Kenya is ripe for an Attorney-General who is not afraid to do the right thing, liwe liwalo, and Judge Maraga has demonstrated the ability to cut through the political faff and present the legal case over matters of national importance. Of course he will need to brush up on his political and interpersonal skills, but what he currently possesses is well-suited to being Mwanasheria Mkuu and Mkuu wa Sheria all rolled into one.

This is true of the other lawyers cosplaying at politics. Their particular skills are well suited to sitting on the Bench or representing the State at the State Law Office or the Office of the Director of Public Prosecutions. Indeed, if we are to amend the current statutory framework, I would recommend amending all the laws that provide that the chairman of a constitutional commission should have the qualifications of a judge. If you are not appointing a Judge or magistrate, that qualification only serves to entrench lawyering into administrative frameworks for which lawyering is a liability, not an asset. And yes, that includes the Kenya National Commission on Human Rights, Commission on Administrative Justice, National gender and Equality Commission and Judicial Service Commission (which should never, ever have been headed by the CJ to begin with).

If Judge Maraga wishes to serve the people of Kenya once more in a consequential way, he should eschew the presidency and instead hitch his wagon to a presidential candidate who has the necessary probity he wishes to bring to the table and serve in that government as the principal legal advisor to the Government. In that position, he would have the opportunity to sweep away the legacies of odious monsters like Charles Njonjo and instead, revivify among the State Counsels a sense of duty and honour that seems to be waning these days.

Will the real Judge Maraga please stand up

Some of the men (and women) whom we think are incorrigibly stupid only appear to be so because of the facade they put on. Anyone who can persuade a constituency to re-elect him, election after election, can hardly be described as stupid, even as he (or she) does a whole bunch of things that make no damn sense. What we must ask is this: how come so many bad men (and women) keep getting elected while the paragons of virtue who we have placed on pedestals keep falling by the electoral wayside?

The answer, I believe, lies in the ability of the so-called bad candidates to organise politics organisations dedicated to their election/re-election and the inability of their novice would-be challengers to do the same. There is the much larger population of such truly unpleasant men (and women) who will never get elected, even if they did the hard work of establishing political machines in support of their electoral ambitions.

It is damnedly difficult to set up an election ground game in Kenya at the best of times. It is twice as difficult if you want to set one up without an existing (and successful) political party to offer any form support. While Kenya has a massive number of registered political parties, few of them have successfully sent a candidate to Parliament or a county assembly, and those that fail to build up on electoral successes tend to flat out at the next general election. Be that as it may, a well-organised and well-run political party is essential to electoral success.

I say all this to speculate at the chances of Chief Justice emeritus David Maraga. Judge Maraga appears to have cast his die in presidential electoral politics and is traversing the country and appearing at political events to sell himself as a candidate at tech next general election. Those who support his campaign point to his integrity (which is considerably high). So far, he has not given any reason to consider that he is not fit to be president of this republic. Except one.

He does not appear to be a member of a political party and no political party appears to have hitched its wagons to his prospective candidacy. While he appears to be surrounded by a team of committed supporters, that is all it seems: in the absence of a political structure of any sort, I am let to wonder whether the men and women singing his praises wherever he goes, who shout the loudest about his credentials, and who bristle at any doubt against their candidate, are the parasites that afflict all political candidates and suck out the lifeblood of a political campaign.

Judge Maraga, at this stage in the proceedings, should have completed the arduous task of establishing and registering a political party (especially if he was never joining an existing political outfit). He should have began to identify candidates for the 1,350 elected county assembly seats, a slate of special interest seat nominees (women, youth, PWDs), candidates for the 290 elected national assembly seats, 47 woman representative seats, 47 elected senate seats, and the slates of special interest seats in both chambers of Parliament. And collectively, they should have started recruitment of members of their political party and, crucially, fundraising from these members to sustain their campaign. He does not appear to have done any of these things. How does he expect to be elected?

"Integrity" is not a political philosophy or ideology. What, beyond, "anti-corruption", is his politics made up of? How much of the public purse is he going to dedicate to the brick-and-mortar "development" or roads and affordable houses and how much of it is going to dedicate to paying a real wage to the perennially neglected healthcare workers and basic education teachers? Will he expand the size of the presidential fleet with diesel-guzzling armoured SUVs and German limousines or will he, finally, abolish VIP transport for the entire national and county executive and, instead, invest that wasteful expenditure in public safety? These, and dozens upon dozens of ideological questions remain unanswered and undermine his presidential campaign before it has even official began.

If Judge Maraga wants to be President and Commander-in-Chief of the Kenya Defence Forces, he cannot afford to confine his political campaign to visiting courtrooms where "activists" are being prosecuted or "GenZ" rallies where the most important feature of the rallies is his presence. If he doesn't build a political movement, consisting of a political party, electoral candidates, a political ideology, and a campaign finance fund-raising team, he will be remembered (if at all) for being just one more dilettante who showed so much promise and flamed out so pitiably.

Time's up, boomer

Kenya’s leadership is overwhelmingly grey and male. Captains of industry, ministers of religion, government bureaucrats, elected politicians and, yes, trades union leaders, are more likely to have seen more decades on Earth than the average Kenyan. Many die while still in their harnesses, having clung on to their positions of power and authority long beyond it made any sense for them to be there in the first place. Many cling on because they fear the obscurity that comes with being “retired”.

Some, though a precious few, maintain a quick mind, possess and share a wealth of wisdom, and offer leadership when the impatience of youth rears its head and threatens the established order of things. The vast majority of the geriatrics who won’t let go keep to themselves. But a small minority simply can’t let go and won’t shut up about what they have done for us. They are a pestilential plague upon the land.

In recent days, one of those old men has taken it upon himself to justify his continued presence atop one of Kenya's most important institutions, an institution that was established to champion the rights of unionised labour. He knee-jerk response to the demand by a youthful rights activist to step aside and allow fresh blood at the helm of the institution is par for the course for old men who believe, almost always erroneously, that they are indispensable.

In an inexplicable screed that was published in one of Kenya's leading tabloids, he set down in excruciating detail what he had done to bring Kenyan labour closer to employers and closer to the government in a tripartite agreement that he is absulotely certain has been a boon to Kenyan employees. (Why the tabloid chose to publish this remarkable waste of column inches only the misguided editors of that rag can explain.) He followed up with a spectacularly insanely long tweet trying to paint the object of his animus as an untrustworthy conwoman who stole millions of shillings entrusted to her for the care, treatment and support of victims of police violence during the anti-Finance-Bill-2024 protests.

It was completely lost on him that everything he had written down in response to what he had been accused of - overstaying in leadership beyond all reason - did not once address that core question. In his mind, because he "oversaw" the enactment of five landmark labour laws, and "contributed" to the promulgation of Article 41 (found in the Bill of Rights) of the Constitution on labour relations, there was no reason to respond to the fact that he had overstayed in leadership and that it was high time he stood aside and allowed younger persons to step into the breech.

This sort of intellectual intransigence is all too common in all manner of institutions. But change is coming, whether the old men accept it or not. Voters have begun the arduous task of weeding out the geriatrics from Parliament and the drip-drip-drip of electoral replacements will become a flood soon enough. C-suites in corporate Kenya are seeing wazee being put out to pasture; more and more CEOs are men and, increasingly, women in their forties and fifties, rather than cranky grey-hairs in their seventies. Ministries of religion have many Gen Z preachers, though much of their religious ministry causes great spiritual discomfort even among their youthful flocks.

This old man's time is up. Only he seems to think that it is not.

The glue of our politics

The glue that holds Kenya's politics together is hypocrisy. Would-be saviour, those ones with the Uranus-sized egos, those whom the gods whisper in their ears, "You are the one", they practice hypocrisy to such perfection that not even the approbation of their families sticks to them. We have been witness to their machinations for generations yet we still fall for their false promises and outright lies because our need to believe is greater than our instincts for scepticism and doubt.

We used to be able to tell the charlatans from the lesser charlatans. Our politics may have been deeply tribalistic and very violent, but we were never under the illusion that the men and few women we sent to bunge were driven by our interests. We knew who they were and for the most part, we didn't care too much what they did so long as they didn't steal our wives (which they still did, but not too much) or our goats (which they continued to do, but not all of them) and contributed to church fundraisers (where they gave their small-small thousands and kept their mouths shut about it).

Then we elected Mwai Kibaki and for a brief ninety-day period, we were the Most Optimistic People In The World. We fell for a terrible lie: One Man Can Change The World. What came before laid the foundation for that optimism: Raila Odinga and the rest of the Opposition somehow found the will to set aside their tribal animosities to unite against Baba Moi's project: Uhuru Kenyatta and Musalia Mudavadi, one the son of Kenya's first president-for-life, one the son of one of Baba Moi's most loyal tribal satraps.

Mwai Kibaki, Leader of the Official Opposition, and Raila Odinga, son of Kenya's most difficult vice-presidents, joined hands, and strung together a winning presidential campaign that began with "Kibaki Tosha!" and culminated in "Yote Yawezekana Bila Moi!" It didn't last. By the end of the ninety days, Mwai Kibaki was an invalid, and his Mount Kenya tribal satraps had pushed out Raila Odinga from any kind of decision making, the V-P would soon die in a hospital in London, his successor would keep his head down and eat his supper in silence, and Kenya hurtled towards a constitutional referendum that would shatter the 2003 illusions to smithereens.

By the time the dust had settled after the 2005 referendum, the die was cast; Kenyans would never see an honest bone in any politician ever again. You can see the aftermath of that referendum in some of the political operatives flitting about TV studios these days. Some have come up as a result of the activism and advocacy of young people, particularly after the 2024 anti-Finance-Bill protests, and they have swiftly adopted the hypocritical positions of political godfathers who will discard them as soon as their youthful usefulness is spent. One of the political gadflies of the day, with a penchant for fancy three-piece suits and an English vocabulary that hides the shallowness of his ethics, is a particularly galling example of the extent to which political hypocrisies have spread.

But it is the middle-aged cohort that continues to appall and disconcert in equal measure. On TV, they say all the right things. On WhatsApp, they bow and scrape before the doyens of political hypocrisy with such fervour, it is a wonder they don't develop a permanent crick in their spines for all the contorting they have to do. One, claiming bona fides in energy justice, is particularly expert at running with the hares and hunting with the hounds, painting herself as a champion of the weak and vulnerable all the while seeking a place at the high table of energy sector decision-making.

We should know better. Our window of opportunity to put Kenya on the long and arduous road to political and economic revivification came and went in the smoke and mirrors of grand corruption and the looting of the national coffers. That opportunity will not come by ever again unless the gods deign to give us another chance.

Thy name is vanity

How many thought that Mr. Omtatah's "exploratory committee" would run out of steam this fast? While Mr. Omtatah's novel approach was encouraging, it was hobbled by a common mistake made by all also-ran presidential candidates since the return of multi-party politics: the hubris of one man who thinks that he doesn't need the political party that sponsored him to Parliament.

Mr. Omtatah's path to the Senate was a relentless one. A stalwart of the "good governance" civil society set, he set himself apart by suing the Government (and winning) over the way public money was spent. His litigation record is the envy of many and his achievements cannot be gainsaid. When he put himself forward to stand in the Busia County senate election, I feared that his victory would not lead to the kind of change he thought he could bring to Parliament. I was right; Mr. Omtatah does not appear to have sponsored a single Bill since his election. He has kept on suing the national executive over the Finance Bill; but he has not sponsored a single Bill.

He is not the activist-turned-elected-politician to discover that governing, unlike activism, is not a one-man show. As a member of the Senate, he is part of the Government, and as part of his remit, is participating in the law-making function of Parliament. Sponsoring and participating in litigation has its benefits; but it is a costly affair and does not always lead to the outcome one hoped for. As the Finance Act 2023 demonstrated, even when you win, you still lose.

Mr. Omtatah was elected to the wrong chamber. For sure, there's a lot that the Senate can do to improve the lives of the people but the Senate is not where one wants to be of one hopes to affect real change to the way public money is spent. For that, one needs to be in the National Assembly where the Budget Outlook and Review Paper, Budget Policy Statement, Estimates of Revenue and Expenditure, Finance Bill and Appropriation Bill will be introduced and debated.

But even more important than that is the ability to "work well with others". Mr. Omtatah does not appear to have found that gear yet. Parliamentary practice is replete with the kind of horse-trading that undermines public confidence in the institutions of government. In the modern parlance, such horse-trading is the necessary evil one must engage in if they wish to change lives for the better. Mr. Omtatah's lack of a legislative record would seem to imply that he does not want to horse-trade with his Senate colleagues. I don't see how he will have a successful parliamentary or presidential career if he believes that he can govern alone.

It might be that his exploratory committee has gone quiet so that it can collate the data it has collected since it was appointed last year. If that is so, the members of the committee might want to tell him that he needs to work with his parliamentary colleagues even if it means holding his nose in the process. He must put forward legislation he believes will help the people. If he won't even do that, why should the people even consider his putative presidential candidacy as anything but a vanity project?

Mr. Omtatah's faith and our rights

Clause (2) of Article 32 of the Constitution states that, "Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance a day of worship." One of the ways one manifests their religion is to wear or display symbols of their faith, for example, like wearing a rosary.

"Every person" includes candidates for political office, such the office of president, the very office Okiya Omtatah is seeking. Not everyone is amused by how Mr. Omtatah's communications team has presented him so far in his exploration of whether or not he should offer himself for election as president. In one of the publicity photographs that accompanied his announcement, he is seen to be wearing a rosary. As usual, people are saying things about it and I am saying things about the things they are saying. QED.

One of the argument goes like this: Article 8 says that there shall be no state religion in Kenya. Therefore, Article 8 limits the right protected under clause (2) of Article 32 because Mr. Omtatah cannot seek the presidency with his religion as key cornerstone of his campaign. This is the wrong way to read Article 32 with Article 8.

First, if Mr. Omtatah proposes to seek the presidency on the basis that he is a good Catholic, he has every right to not only do so, but to campaign on the basis that his presidency will be influenced by his Catholic faith.

Second, what Mr. Omtatah cannot do is to impose Catholicism on Kenyans as a state religion or purport to appoint the Attorney-General, Cabinet Secretaries, Principal Secretaries, the Secretary to the Cabinet, the heads of the national security organs, the Director of Public Prosecutions, the chairpersons of state corporations, ambassadors and high commissioners, merely because they, too, profess the Catholic faith, and that the legislative proposals, statutory instruments, public policies, government programs and projects they initiate will be based entirely on the principles and values of the Catholic Church.

Third, the manner of limiting a right or fundamental freedom protected under Chapter Fourteen of the Constitution, including Article 32, is provided in Article 24. It is not Article 8 that limits the right protected under clause (2) of Article 32. A plain reading of Article 24 will demonstrate this. Three of the grounds for the limitation of a right or fundamental freedom are that the limitation shall be based on human dignity, equality and freedom. The demand that Mr. Omtatah must not profess his faith when campaigning, must not display the symbols of his faith whole campaigning, and must eschew the values and principles of his faith when campaigning, offends his dignity, denies that his reasons for seeking the presidency (if they include reasons tied to to his faith) are not the equal of more secular reasons, and denies himself the freedom protected by Article 32. The demand is unreasonable and unjustifiable in an open and democratic society.

In my opinion, Mr. Omtatah is not barred from seeking the presidency on the grounds that he professes the Catholic faith. That is not a valid ground from barring him from elected office. Anyone who objects to such a public display of religious values and principles that he or she disagrees with should campaign against Mr. Omtatah, by pointing out the risks he or she thinks Mr. Omtatah poses if elected. That person may point out to the harm done by men and women who profess the Catholic faith and why he or she thinks that so long as Mr. Omtatah publicly relies on his Catholic faith to make decisions affecting the lives of other Kenyans he should not be elected as Kenya's president. But there is absolutely no constitutional or legal ground for barring him from seeking the chance to stand in the presidential election.

This, I think, is the trap we fall into whenever we debate these things. We conflate our personal views about a person with sometimes erroneous interpretations of the law and then use this fallacious argument to support a patently wrongful conclusion. There are many Kenyans who are offended by the positions Mr. Omtatah has adopted because of his Catholic faith and his associations with organisations that promote many retrogressive ideas that are based on Catholicism. They fear that Mr. Omtatath's and those organisations' positions and ideas are a threat to Kenyans' rights and fundamental freedoms. If they feel strongly about it, the solution is not to find arbitrary justifications to violate Mr. Omtatah's rights and fundamental freedoms; the solution is to campaign against Mr. Omtatah or to campaign for a better candidate than Mr. Omtatah. That is what clause (2)(b) of Article 10 demands: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.

Early days

Okiya Omtatah will not save you.

Let me explain.

Our political education seemed to have ended when Daniel Moi's Project was defeated in December 2002. Even after Mwai Kibaki and his acolytes conspired to not just perpetuate the Moi kleptocracy they inherited, but to supercharge it, we seemed to have given up on anything resembling civic mindedness and political education. Things came to a head in the 2005 constitutional referendum where even professors in the academy stated without irony or shame, "If Raila Odinga has read the draft constitution, who are we to read it for ourselves?" as we were shepherded in rejecting the draft Constitution.

Today, we are confronted with the desire in certain quarters to put Mr. Omtatah forward as Kenya's Sixth president in 2027. On the strength of his activism, especially the public interest litigation cases he has successfully prosecuted, Mr. Omtatah certainly has the approval of many Kenyans. His is not burdened by a history in which he was a full-fledged member of the Kanu eating classes or a beneficiary of the Kibaki lootocracy that robbed Kenyans of their second chance at political success. He was the thorn in UhuRuto's side, and his bona fides during the anti-BBI era are plain to see.

But we know very little about him and his leadership credentials. For sure, his successful election as a senator point to some of it, but the fact that he does not appear to have sponsored any Bills in the Senate is not encouraging. But more importantly, he has demonstrated that he prefers lone-wolf tactics, and refusing to participate in the messy horse-trading characteristic of legislative processes the world over. This may be a good thing, but I don't think so.

On one hand, he has stuck to his principles and has done everything in his power not to compromise them, even if means that he will not be credited with any legislative programme in the Senate. He can rely on the argument that legislating is the collective responsibility of ALL parliamentarians, and not just the sponsors of Bills. On the other hand, even if legislative is a collective responsibility, individual parliamentarians are expected to sponsor Bills to advance the issues their consciences and principles declare to be for the public good. Those Bills, if they receive the support of other parliamentarians, are proof that one has the capacity to work with even odious people in advancing a people-centred agenda. This does not appear to be Omtatah's style, hence his reliance on public interest litigation and his eschewing of legislative processes. It begs the question: why sit in Parliament if he is unwilling to act as a parliamentarian?

The second issue revolves around whom he has surrounded himself with in his political work. Little is known of his National Reconstruction Alliance Party of Kenya beyond the registration status with the Registrar of Political Parties and the annual reports by the Auditor-General on the finances of the party. Much is known of his stance on the Government's budget and human rights, but little is known about his positions on labour rights, universal access to education and healthcare, youth employment, environmental degradation, public investments, and dozens of other subjects for which a president must have more than a passing familiarity with. Moreover, little is know about what the people surrounding him think or have said about these issues.

Consequently, many Kenyans treat him as a tabula rasa, ascribing to him their own biases, without wondering at all if he will stand by them or pursue a different path. You can see this confusion manifesting itself in the many positions being adopted by people regarding his putative candidacy. There are those who support him regardless of what his positions are and are being mocked for their naiveté, and there those who wish to know more who are being shouted down for their scepticism.

The truth of the matter is that it is still too early to even conclude that he will be a presidential candidate in 2027. A great deal of work is still to be done to flesh out his political identity outside of anti-Finance-Bill litigations. Perhaps the establishment of the exploratory committee will provide greater insights as t who Okiya Omtatah the Politician actually is and whether that is a man Kenyans can vote for in 2027.